As if 2020 hasn’t already presented more than its fair share of challenges, flu season is now rapidly approaching. Combined with the still ongoing COVID-19 pandemic, employers are more concerned than ever before with ensuring that their employees stay healthy and productive. As a result, many employers are weighing the pros and cons of encouraging, facilitating, or even requiring that their employees to be vaccinated for the flu as a way to protect their workforce against the spread of yet another contagious respiratory infection during the fall and winter months. However, employers need to understand the legal nuances associated with such policies as well as their related obligations to their employees before implementing mandatory vaccination policies or deciding to offer on-site flu shots. (Please note that the discussion in this post relates only to flu vaccination issues, and not issues that may arise once a COVID-19 vaccine is developed and made available, as the circumstances relating to that vaccine may be different than those that apply to flu vaccination.)

Under the federal Occupational Safety and Health Act (OSHA) and many states’ laws, employers are obligated to provide a workplace free from serious recognized hazards. To comply with that requirement, employers have the right to establish legitimate health and safety standards, policies, and requirements so long as they are job-related and consistent with business necessity. However, the extent to which an employer can implement policies mandating that employees be vaccinated depend largely on the employer’s industry and location. For example, policies mandating vaccinations are more likely to be appropriate for employers in the healthcare industry and other environments where employees provide services to individuals who are at a high risk of having serious complications if they were to contract the flu. Accordingly, courts in a number of jurisdictions have held that these workers can be required to receive vaccinations, such as rubella or flu vaccinations, as long as the requirement is job-related and consistent with business necessity.

Importantly, even if an employer’s vaccination requirement qualifies as a legitimate health and safety requirement, under certain circumstances, some employees may nonetheless be exempt from complying. The U.S. Equal Employment Opportunity Commission (“EEOC”) has identified two principal exemptions to mandatory vaccination requirements. An employee may be exempt from compliance with a mandatory vaccination policy if they have a qualifying disability under the Americans with Disabilities Act (“ADA”) which prevents them from safely receiving the vaccine. For example, according to Center for Disease Control (CDC) guidance, persons with certain health-related conditions, such as life-threatening allergies to ingredients in the vaccine or disorders such as Guillain-Barré Syndrome, should not be vaccinated for the flu.  Further, the EEOC advises that employers should accommodate a pregnant employee’s request to not be vaccinated, and other impairments resulting from pregnancy could qualify as disabilities under the ADA warranting accommodation.

However, not all health conditions constitute an ADA-qualifying disability that allows an employee to be exempted from a vaccination requirement. The most recent example is Hustvet v. Allina Health Systems, a 2018 opinion in which the Eighth Circuit held that an employer had the right to terminate a healthcare worker after she refused to be immunized for measles, mumps, and rubella due to her alleged chemical sensitivities and/or allergies. Because the court determined that there was insufficient evidence to support that the plaintiff’s alleged conditions constituted disabilities under the ADA and that the employer’s vaccination requirement was job-related and consistent with business necessity, the court ruled in favor of the employer.

Similarly, under Title VII of the Civil Rights Act of 1964, an employee who objects to receiving a vaccine based on a sincerely held religious belief, practice, or observance also may be exempt from a mandatory vaccination requirement. It is important to note that courts have broadly interpreted “religion” in the context of required vaccination policies. For example, at least one federal court has concluded that veganism qualifies as a sincerely-held religious belief exempting a vegan employee from being required to receive a flu vaccine because receiving a vaccine, which was produced from chicken eggs, would be against the employee’s vegan beliefs.

Upon receiving a request to be relieved of a vaccination requirement as an accommodation, whether due to disability or religious-related reasons, an employer must engage in an interactive process with the objecting employee to determine if it can provide the employee with a reasonable accommodation that does not pose an undue hardship for the employer. When an employer receives a request from an employee to be exempt from the employer’s mandatory vaccination requirement for a disability-related reason, an employer may require verification that the individual has an actual disability, and can require the employee to provide disability-related documentation that substantiates the employee’s need for an accommodation as a result of that disability.

With all that said, mandatory vaccination policies are still largely controversial, particularly for employers not in the healthcare industry. Indeed, EEOC guidance recommends that, in general, “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.” (Given the unusual circumstances presented by the ongoing COVID-19 pandemic, that could however change.) The guidance leaves open the question of whether non-healthcare employers are capable of qualifying under the business necessity test, and thus can mandate that their employees be vaccinated. However, such employers are free to encourage their employees to be vaccinated, and can even offer on-site flu vaccinations clinics for those employees interested in receiving a vaccine.  Employers who wish to encourage their employees to be vaccinated, but cannot host a flu vaccination clinic at the workplace, can to encourage employees to be vaccinated by providing information to employees regarding locations in the community that offer flu vaccination, and can distribute information about the importance of flu vaccinations. Further, employers may also consider establishing policies that allow employees to take an hour or two off of work to obtain a flu vaccination off-site. The CDC provides guidance on promoting vaccination in the workplace.

Where an employer is located also may impact its ability to implement a mandatory vaccination policy.  Numerous states have passed laws regarding the legality of workplace vaccination policies, particularly for healthcare employers, and some states even require employers to offer vaccines to their employees. The CDC provides helpful guidance on this topic; however, state requirements continue to evolve, so employers should consult with counsel regarding the specific requirements in their particular jurisdiction before implementing vaccination policies.

Employers who are considering a mandatory flu vaccination policy should tread carefully and consider all of the legal obligations and potential ramifications associated with implementing such a policy. Employers may be motivated by a desire to protect the safety and wellbeing of their workforce (and thereby ensure a healthy, available, productive workforce), but they must also balance that desire with employees’ rights under the ADA and Title VII. With that said, employers remain free to encourage their employees to be vaccinated, and can even provide employees with the opportunity to be vaccinated at their work-site, as long as they follow the proper procedures under state and federal law. Employers should consult with an attorney before implementing a mandatory vaccination policy to ensure their policy is appropriate and legally compliant.